Enslen v. Allen, 49 So. 430

Enslen v. Allen

49 So. 430 | Ala. | 1909

SAYRE, J.

On September 10, 1895, Della W. Enslen and D. P. Allen entered into an agreement for the purchase of a certain lot in the city of Birmingham, and did purchase the same, for the common benefit of the parties, title to be taken in Mrs. Enslen with an agreement to convey a half interest to complainant Allen *533when he should have paid his part of the purchase money. The lot was at the time under mortgage to Mrs. Lowry for $6,000, and it was the understanding of the purchasers that this or some substitutionary lien upon the property should be continued indefinitely. Of the first payment of $750, Mrs. Enslen contributed $637.50, the complainant the balance. It was agreed that Eugene F. Enslen, husband of Mrs. Enslen, should collect the rents and apply the same on purchase payments, taxes, insurance, etc., until payments between the purchasers were equalized, when complainant should become entitled to a conveyance of a half interest. It was also agreed that whenever, within two years, complainant should pay one-half of the purchase money, not including the mortgage, he should have conveyance. This time was subsequently extended to October 7, 1898. The bill alleges the receipt of rents by Enslen for his wife, except $237.50, which was received by complainant. It does not appear that complainant made further payment. The bill filed March 1, 1899, alleges that the mortgage was foreclosed under power by Mrs. Lowry on January 26, 1S9S, and the property purchased by one Barnard, who was acting on the procurement of Eugene Enslen, who paid the money and immediately received a conveyance, from Barnard. Both before and after the mortgage foreclosure complainant demanded of Eugene Enslen an accounting of the rents, and offered to make payment of the amount due to Mrs. Enslen if Eugene would state the account. It is alleged that Eugene Enslen conceived a plan to deprive complainant of all interest in the property wrongfully and without compensation, and that he “arranged” for a foreclosure of the mortgage held by Mrs. Lowry. The preliminary recital of the agreement refers to the contract as an agreement between Mrs. Enslen and complainant. Eugene Enslen joined in its *534execution. Such obligations as were assumed by him are to be found in that clause of the contract in which it was agreed that he should collect the rents, etc., already noted, and a clause as follows: “It is also agreed that Eugene P. Enslen, the husband of Della W. Enslen, party of the first part, hereby gives his consent for his said wife to make this contract and obligates and binds himself to give his assent and concurrence by joining her in a deed to be executed in compliance with the above agreement.” These are the facts, according to our ■conception, upon which the equity of the bill depends.

If this bill were filed against Mrs. Enslen alone, it ■could not progress to a decree for a conveyance by her to the complainant, for the. reason, appearing on the face of the bill, that she has no title to convey. A court of chancery cannot decree specific performance of an agreement to convey property to which defendant has no title, even though the want of title has been caused by the defendant’s own act, as by his conveyance to a bona fide purchaser. — Kennedy v. Hazelton, 128 U. S. 667, 9 Sup. Ct. 202, 32 L. Ed. 576; Fitzpatrick v. Featherstone, 3 Ala. 40. Where, however, a conveyance has been made in fraud of the complainant’s right to specific performance, the grantee being a party to the fraud, the transaction will be avoided, the fraudulent grantee divested of his title, and a conveyance compelled in compliance with the grantor’s contract. — Manning v. Pippen, 86 Ala. 357, 5 South. 572, 11 Am. St. Rep. 46; Kent v. Dean, 128 Ala. 600, 30 South. 543. At the time when the contract was entered into the defendant Eugene Enslen had no title, it was not contemplated that he would acquire title, nor did he enter into any engagement to convey title. The intent of his undertaking was to give his assent and concurrence by joining with his wife in a deed to be executed by her in compliance with her agreement. *535The equity of the bill as against him must rest upon the proposition that he acquired title in fraud of the complainant’s right, and so must be treated as a trustee for the complainant. This, in turn, depends upon the theory that when he undertook to act as the agent of his wife and complainant to collect and manage the rents and apply the same on purchase payment, taxes, insurance, etc., he became a trustee for them in such sort as denied him the right to purchase for himself at the mortgage sale. The relation of principal and agent where the agency is for the management of an estate is a fiduciary, one, and is governed by the rules which pertain to relations of trust and confidence. The agent may not during the agency assume any relation with others or do any act which is in conflict with the interest of his principal. The trustee may not'expose himself to the suggestions of self-interest. — 1 Perry on Trusts, § 206; Adams v. Sayre, 70 Ala. 318. An agent is not permitted to purchase property when he has any duty devolved on him inconsistent with the character of a purchaser.- — Adams v. Sayre, supra. But, after the agency is terminated, the agent may act for himself subject only to those restraints of good faith and fair dealing which must obtain in all transactions. — Scottish Union Ins. Co. v. Dangaix, 103 Ala. 388, 15 South. 956. We think, then, that if the defendant Eugene Enslen during his agency to manage and collect rents and apply them to complainant’s advantage in effecting the purchase of the property, arranged for the hastening of the foreclosure of the mortgage — no objection being taken to the generality of the charge — -thus precipitating the emergency upon complainant, and schemed and practiced to keep complainant in .the dark meanwhile, in order that he might not be prepared to meet it, his mala tides projected beyond the foreclosure, which, in the absence of fraudulent pro*536curement, would have terminated his agency and trusteeship, and he must he held at the option of the complainant, to have purchased as trustee for him.

An accounting is sought as ancillary to the remedy by specific performance. The matters of which an accounting is demanded are peculiarly within the knowledge of the defendant Eugene Enslen, and equity must assume jurisdiction to compel an accounting, for so only may it be known how the defendant has acted in the execution of his agency.—(Mackenzie v. Johnston, 4 Madd. 373) and so the only right to specific performance made available and complete. It was the duty of Enslen to keep an account of his stewardship-, and on request to submit his account to his; principal. — 1 Andrews Am. Law, p. 835. This duty rested upon him whether he received rents before foreclosure as agent for his wife and the complainant or afterwards for himself. In either case, he was, on the hypothesis of the bill, trustee for complainant. Mrs. Enslen also must account for the acts of her agent. The demand for an accounting and offer to pay what might be found due met by a denial of complainant’s right within the time limited by the agreement and its extension — the validity of the extension not being brought into question by the demurrer — was a sufficient offer to perform by complainant. — Adams v. Sayre, supra.

The footnote appended to the bill in its original form was as follows: “The defendants are required to answer all of the allegations of this bill, but an answer under oath is hereby waived.” In tihe bill as last amended there is an addition of matter alleged to paragraph 1, while a new paragraph is substituted for paragraph 2. The substituted paragraph 2 deals in general with the facts alleged in original paragraph 2, but states the details differently. The demurrer took the objection that *537the amendment had no footnote. In McKenzie v. Baldridge, 49 Ala. 564; Paige v. Breadfoot, 100 Ala. 610, 13 13 South. 426, and Barnett v. Tedescki, 154 Ala. 474, 45 South. 904, it was held that footnotes in the general form adopted in this case were a compliance with the rule. The amendments became a part of the bill, and there is nothing to exclude the idea that they fall within those parts required to be answered. The footnote served the only intelligible purpose which can be aS' signed to it. It informed the defendants of what they must answer, and this it did as well after amendment as before.

Affirmed.

Dowdell, C. J., and Anderson and McClellan, JJ-. concur.